This page deals with how far volunteers are protected by the Equality Act, whether as ’employees’ or for example members of ‘associations’.
The main focus tends to be on whether a volunteer falls within the Equality Act employment provisions. Volunteers are not protected by the employment provisions except in fairly limited circumstances, as discussed below. An argument that European law requires wider protection has been rejected by the Supreme Court (see below Does European Union law extend protection?).
Apart from the employment provisions, it is also worth considering whether a particular volunteer is protected as a member of an association, or perhaps as a service user. This page also outlines these further possibilities.
Employment provisions of Equality Act
Many volunteers are not protected from disability discrimination by the employment provisions of the Equality Act. The main situations where a volunteer does fall within the Act’s employment provisions are as follows:
Work experience, interns
Work experience is covered by the Equality Act, subject to exceptions. The Equality Act says it is to be seen as ‘vocational training’ within s.56(1) EqA. For more, including the definition, see Work experience. See also Employment Code para 11.59.
So an intern is potentially covered, even if he or she is not an ’employee’. In X v Mid Sussex Citizens Advice Bureau the Supreme Court expressly mentioned an intern as someone who might be covered.
More generally, vocational training can also be protected as Employment service.
Legal contract to do work
Where the person has a legal contract obliging them to work (albeit without pay), they may fall within s.83(2) EqA either as an “employee” or as someone who “contracts personally to do work”. See also Employees, workers and beyond.
Newham Citizens Advice Bureau v Murray is an example of a case where the EAT considered that the employment tribunal had too easily found a volunteer not to be within the DDA (as it then was). However, various unsucessful claims indicate that it is difficult to succeed on this argument, e.g. SE Sheffield Citizens Advice Bureau v Grayson (link to bailii.org), EAT, 2003.
Volunteering as way to assess suitability for employment
S.39(1)(a) EqA makes it unlawful for an employer to discriminate “in the arrangements [it] makes for deciding to whom to offer employment”. So the Equality Act might perhaps apply if an organisation uses volunteering as a way of assessing an individual’s suitability for particular work there.
On the facts, this was held not to apply in X v Mid Sussex Citizens Advice Bureau. Note this case was based on different wording in the DDA which used to talk about the ‘purpose’ of the arrangements.
Special constables are included within the police provisions in s.42 and 43 EqA.
Even a ‘paid’ volunteer not always covered
Even a paid ‘volunteer’ is not always covered as an employee under s.83(2) EqA. An example is Breakell v Shropshire Army Cadet Force (link to bailii.org) (2011) where there was no legal obligation to do or to provide work and payment was due only if the person worked (article on spencerkeen.co.uk).
Volunteer as member of an ‘association’
A. person volunteering as a member of an association may well be covered by the provisions on ‘Associations’ in Part 7 Equality Act.
Example: A member of a political party does voluntary work for them, eg in an election campaign. She may be protected by the provisions on associations.
In some cases, becoming a volunteer may actually make the person a ‘member’ of the association within Part 7 Equality Act.
Example: People who volunteer for St Johns Ambulance are commonly referred to as ‘members’. Even if they are not members in a formal consitututional sense (I don’t know whether they are), it might be argued that they fall within Part 7 Equality Act.
A disadvantage of a case falling with Part 7, rather than the employment provisions, is that it needs to go to the County Court (or Sheriff Court in Scotland) rather than the Employment Tribunal. The same applies to complaints on provision of services, as discussed in the next heading.
I’m indebted to the discussion of these and other issuess in a paper by Tom Royston, Treating volunteers as ‘members of an association’ and the implications for English discrimination law in the International Journal of Discrimination and the Law, 2012: doi:10.1177/1358229112446367. The paper also suggests, for example, that a volunteer working for a Citizens Advice Bureau might be a ‘member’ of the bureau (in the ordinary usage of the word ‘member’), so as to be protected under Part 7 of the Equality Act.
Volunteer as service user?
It has been suggested that an organisation taking someone on as a volunteer could be seen as providing the person with a service, so that the rules on provision of services to the public could apply. However, where there is a selection process for volunteers, it could be difficult to argue that the organisation is supplying a service ‘to the public’. Another potential area for dispute is whether the organisation is providing a service to the volunteer.
Does European Union law extend protection?
It has been argued that under the European Framework Employment Directive, employment-style protection against discrimination extends beyond the relatively limited categories of volunteers covered by the wording of the Equality Act’s employment provisions.
However, UK courts have held that the European Directive does not extend protection for volunteers:
X v Mid Sussex Citizens Advice Bureau (Supreme Court, December 2012)
The claimant was a volunteer adviser at Citizens Advice Bureau. She was asked to cease to attend as a volunteer, and alleged that this was disability discrimination. The tribunal found that her volunteer post did not fall within the Disability Discrimination Act 1995 (DDA). She argued that the EU directive required her to be protected. She said that the word ‘occupation’ in the Directive covers part-time unpaid volunteers whose activities are a sufficiently significant or important part of the “employer’s” function. The Supreme Court disagreed, and refused to refer the matter to the EU Court of Justice. The Supreme Court considered that ‘occupation’ in the Directive refers to being able to become a solicitor, or a plumber for example, rather than getting a post with a particular employer.
Volunteer Rights Inquiry
Voluntering England conducted a Volunteer Rights Inquiry which issued its final report in March 2011. The Inquiry and Volunteering England asked all volunteer involving organisations to sign up to the ‘3R promise’ in order to raise standards of volunteer management. See Volunteer Rights (link to ncvo.org.uk).
Volunteering England is one of the bodies which wrote to the Citizens Advice Bureau’s solicitors in the X v Mid-Sussex CAB case above to support the CAB’s argument that volunteers are outside the scope of protection under the DDA/Equality Act and EU Framework Directive.
More on arguments for change
The issue of volunteers was considered in the House of Commons Committee on the Equality Bill, where the Government set out why it does not intend to legislate for them (col 440-441, Public Bill Cttee, 23rd June 2009 (parliament.uk)).
In April 2009 the House of Commons Work and Pensions Committee had said it “strongly” believes that disability discrimination protection should apply to volunteers. “Volunteers currently have less legislative protection against discrimination than someone going into a sweet shop.” See paragraphs 134-137 of committee report The Equality Bill: how disability equality fits within a single Equality Act (parliament.uk).
See also Opinion Piece from the Guardian: Who will help the volunteers? (theguardian.com), 19/11/2009.